Citation Nr: 0809027
Decision Date: 03/18/08 Archive Date: 04/03/08
DOCKET NO. 06-06 819 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Manila, the
Republic of the Philippines
THE ISSUES
1. Entitlement to service connection for degenerative disc
disease of the lumbosacrococcygeal area/coccydynia.
2. Entitlement to service connection for dysthymic disorder
as a secondary to service-connected tinnitus.
ATTORNEY FOR THE BOARD
J.R. Bryant, Counsel
INTRODUCTION
The veteran had active service from February 1964 to July
1989.
This matter is before the Board of Veterans' Appeals (Board)
on appeal from rating decisions in March 2005 and January
2006 by the above Department of Veterans Affairs (VA)
Regional Office (RO).
Also as originally developed for appeal, the veteran's claim
included the additional issue of entitlement to service
connection for post-traumatic stress disorder. However, the
veteran indicated in his July 2006 substantive appeal that he
no longer wished to pursue that issue, and it was withdrawn.
Therefore, consideration is limited to the issues listed on
the first page of the present decision.
The issue of entitlement to service connection for dysthymic
disorder as a secondary to service-connected tinnitus is
addressed in the REMAND portion of the decision below and is
REMANDED to the RO via the Appeals Management Center (AMC),
in Washington, DC.
FINDING OF FACT
The veteran's single documented episode of back pain in
service was acute and transitory, and a continuing chronic
disability was not then present. Degenerative disc disease
of the lumbosacrococcygeal area/coccydynia did not manifest
during service, and is not attributable to any event during
service.
CONCLUSION OF LAW
Degenerative disc disease of the lumbosacrocooccygeal
area/coccydynia was not incurred or aggravated by active
service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(a)
(West 2002); 38 C.F.R. §§ 3.159, 3.303 (2007).
REASONS AND BASES FOR FINDING AND CONCLUSION
Pertinent Law and Regulations
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by active
military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002);
38 C.F.R. § 3.303(a) (2007).
Where there is a chronic disease shown as such in service or
within the presumptive period under 38 C.F.R. § 3.307 so as
to permit a finding of service connection, subsequent
manifestations of the same chronic disease at any later date,
however remote, are service connected, unless clearly
attributable to intercurrent causes. 38 C.F.R. § 3.303(b)
(2007). Service connection may also be granted for any
disease diagnosed after discharge, when all the evidence,
including that pertinent to service, establishes that the
disease was incurred in service. 38 C.F.R. § 3.303(d).
As a general matter, service connection for a disability on
the basis of the merits of such claim is focused upon (1) the
existence of a current disability; (2) the existence of the
disease or injury in service, and (3) a relationship or nexus
between the current disability and any injury or disease
during service. See Hickson v. West, 12 Vet. App. 247, 253
(1999).
When there is an approximate balance in the evidence
regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given to the claimant.
38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2007).
The benefit of the doubt rule is inapplicable when the
evidence preponderates against the claim. Ortiz v. Principi,
274 F.3d 1361 (Fed. Cir. 2001).
Factual Background and Analysis
The veteran contends that his current back disability began
in service. He asserts that in his duties as a flight
meteorologist he repeatedly injured his tailbone during
flights through a combination of being knocked off balance by
continuous turbulence and G-forces which threw him into the
edge of his seat. He further asserts that prolonged exposure
to G-forces could have caused his spinal column and nerves to
compress and forced his coccyx to point forward.
SMRs, however, fail to reveal any significant back
symptomatology other than in May 1977 when the veteran was
treated for right lumbar pain. The veteran did not indicate
any specific injuries during service, and none are
documented. Given that SMRs note no description of the type
of injuries that the veteran now details and there are no
subsequently dated medical records on file reflecting further
complaints, evaluation or treatment during the remaining
years of service, it can only be concluded that any back pain
was acute and transitory. Moreover, no complaints or
findings specific to the spine were recorded at the time of
retirement from active duty in 1989. As such, the SMRs do
not affirmatively establish that a chronic lumbar spine
disorder had its onset during military service.
Likewise, no medical records immediately subsequent to
service contain diagnoses of any pertinent disability.
Although the veteran has reported receiving treatment from
private facilities between 1964 and 1980, those records are
unavailable. Thus, the claims folder is devoid of any
treatment records or other medical documents pertaining to
his claimed back disability until 1999, when the veteran
began fairly regular treatment for low back/tailbone pain.
Other records include radiological reports which reveal disc
protrusion at L5-S1; degenerative changes at the lumbosacral
vertebrae and hyper acute angulation of the tip of the
coccyx; and mild predisposition to lumbar instability.
This date leaves a significant 10-year gap between service
separation and the initial confirmation of the disability,
with no clinical support for acute or inferred manifestations
or continued symptoms. The absence of evidence of a back
disability in the SMRs or of persistent symptoms of a back
disorder between separation from service along with the first
evidence of a back disability many years later constitutes
negative evidence tending to disprove the assertion that the
veteran was disabled from any disease or injury during his
service. See Forshey v. West, 12 Vet. App. 71, 74 (1998),
aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed.
Cir. 2002) (noting that the definition of evidence
encompasses "negative evidence" which tends to disprove the
existence of an alleged fact); see also 38 C.F.R. § 3.102
(noting that reasonable doubt exists because of an
approximate balance of positive and "negative" evidence).
More relevant evidence includes a July 2004 statement from a
private physician noting treatment of the veteran since June
2001 for complaints of light to moderate lower back pain due
to constant exposure to turbulence and forces. A second
private physician submitted a statement in August 2004, which
noted the veteran's duties as flight meteorologist included
flying into adverse/severe weather conditions on a routine
basis. The exposure to prolonged turbulence/G-forces had an
adverse impact on the veteran's coccyx and lower spine which
contributed to the degenerative problems of the
lumbosacralcoccyx that he has experienced since June 1999.
The Board notes that the physician also stated that
degenerative joint disease of the spine of the veteran is
extremely common in persons over 40 years of age and
particularly in males. A statement issued by a third private
physician indicates the veteran was initially seen in May
2004 for history of chronic tailbone pain for the past 2
years. Examination revealed unstable distal fragment of
coccyx. X-rays were negative of fracture of dislocation of
the coccyx. The clinical impression was chronic coccydynia.
Although these private medical opinions support the veteran's
contention that his back disability is related to service,
they have limited probative value as none of the physicians
indicated any source, independent of the veteran, regarding
medical history and the extent of the claimed injuries in
service. In evaluating medical opinion evidence, the Board
may reject a medical opinion that is based on facts provided
by the veteran that have been found to be inaccurate or
because other facts present in the record contradict the
facts provided by the veteran that formed the basis for the
opinion. Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005)
(the Board may not disregard a medical opinion solely on the
rationale that the medical opinion was based on a history
given by the veteran). In this case, the other objective
facts present in the record contradict the facts provided by
the veteran that formed the basis for the opinion. The
private physicians' opinions do not reflect knowledge of the
veteran's entire history, since none of them addressed the
lack of documented complaints during service and failed to
account for the hiatus in the medical record from 1989 to
1999. It is also noted that the Court has held that a post-
service reference to injuries sustained in service, without a
review of SMRs, is not competent medical evidence. Grover v.
West, 12 Vet. App. 109, 112 (1999). Therefore, the medical
opinions, in context, are merely the recordation of the
history as related by the veteran, and do not represent a
medical conclusion or opinion by the author. See LeShore v.
Brown, 8 Vet. App. 406 (1995); see also Prejean v. West, 13
Vet. App. 444, 448-9 (factors for assessing probative value
of a medical opinion are the physician's access to the claims
file and the thoroughness and detail of the opinion) and
Elkins v. Brown, (rejecting a medical opinion as
"immaterial" where there was no indication that the
physician reviewed the claimant's SMRs or another relevant
documents which would have enabled him to form an opinion on
service connection on an independent basis). The private
medical opinions are entitled to minimal, if any, probative
weight.
As to the veteran's assertions that he sustained a back
injury in service, the Board notes that he can attest to
factual matters of which he had first-hand knowledge, e.g.,
multiple minor traumas to the back during flights and back
pain. See Washington v. Nicholson, 19 Vet. App. 362, 368
(2005). However, he is not qualified to render an opinion as
to the causation or etiology of his currently claimed
disorder, or establish a diagnosis based upon in-service
experiences. See Espiritu v, Derwinski, 2 Vet. App. 492
(1992) (holding that a lay witness can provide an "eye-
witness" account of visible symptoms, but cannot offer
evidence that requires medical knowledge, such as causation
or etiology of a disease or injury.). Although the veteran
has undertaken significant efforts to educate the Board as to
the nature of his duties as a flight meteorologist and to
explain the facts surrounding his repeated injuries, this
evidence is not probative as to the issue of whether his back
disorder is related to service. Thus, the competent evidence
in this case does not provide a basis for favorable action on
the veteran's claim.
The Board also acknowledges that the veteran was not examined
for the purpose of addressing his service connection claim;
however, given the facts of this case a VA examination is not
required. VA's duty to provide a medical examination is not
triggered unless the record contains competent evidence of a
current disability or symptoms of a current disability,
evidence establishing that an event, injury, or disease
occurred in service or a disease manifesting during an
applicable presumptive period, and an indication that the
disability or persistent or recurrent symptoms of a
disability may be associated with service or a service-
connected disability. 38 U.S.C.A. § 5103A(d).
In this case, there is no credible, competent evidence
indicating that the claimed back disability may be associated
with service. Also because the evidence of record is
sufficient to make a decision on the claim, VA is not
required to provide the veteran with a medical examination
absent a showing by the veteran of a current disability and
an indication of a causal connection between the claimed
disability and a service-connected disability. McLendon v.
Nicholson, 20 Vet. App. 79 (2006); Wells v. Principi, 326
F.3d 1381 (Fed. Cir. 2003); see also 38 U.S.C.A.
§ 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i).
The preponderance of the evidence is against the claim, and
there is no reasonable doubt to be resolved. 38 U.S.C.A.
§ 5107(b); 38 C.F.R. § 3.102.
Duty to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA) describes
VA's duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159, 3.326(a) (2007).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his representative of any information, and any
medical or lay evidence, that is necessary to substantiate
the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).
Proper VCAA notice must inform the claimant of any
information and evidence not of record (1) that is necessary
to substantiate the claim, (2) that VA will seek to provide,
and (3) that the claimant is expected to provide; and (4)
must ask the claimant to provide any evidence in his
possession that pertains to the claim, in accordance with
38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a
claimant before the initial RO decision on a claim.
Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if
VCAA notice is provided after the initial decision, such a
timing error can be cured by subsequent readjudication of the
claim, as in a Statement of the Case (SOC) or Supplemental
SOC (SSOC). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir.
2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006)
(the issuance of a fully compliant VCAA notification followed
by readjudication of the claim, such as a SOC or supplemental
SOC (SSOC), is sufficient to cure a timing defect).
The U.S. Court of Appeals for the Federal Circuit recently
held that any error in a VCAA notice should be presumed
prejudicial. The claimant bears the burden of demonstrating
such error. VA then bears the burden of rebutting the
presumption, by showing that the essential fairness of the
adjudication has not been affected because, for example,
actual knowledge by the claimant cured the notice defect, a
reasonable person would have understood what was needed, or
the benefits sought cannot be granted as a matter of law.
Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007)
In letters dated in September 2004, December 2004, and
January 2005, the RO informed the veteran of its duty to
assist him in substantiating his claim under the VCAA, and
the effect of this duty upon his claim. These letters pre-
dated the RO's March 2005 rating decision. See also VCAA
letter dated in April 2007.
The letters informed him that VA would obtain all relevant
evidence in the custody of a Federal department or agency,
including VA, the service department, the Social Security
Administration, and other pertinent agencies. He was advised
that it was his responsibility to send any other medical
records supporting his claim, or to provide a properly
executed release so that VA could request the records for
him. The veteran was also specifically asked to provide
"any evidence in your possession that pertains to your
claim."
The contents of the above letters provided to the veteran
complied with the requirements of 38 U.S.C.A. § 5103(a) and
38 C.F.R. § 3.159(b) regarding VA's duty to notify and
assist. He was provided opportunities to submit additional
evidence. The purpose behind the notice requirement has been
satisfied because the veteran has been afforded a meaningful
opportunity to participate effectively in the processing of
his claims. In addition, it appears that all obtainable
evidence identified by the veteran relative to his claims has
been obtained and associated with the claims file, and that
neither he nor his representative has identified any other
pertinent evidence, not already of record, which would need
to be obtained for a fair disposition of this appeal. The
veteran's service medical records, VA and non VA treatment
reports, and VA examinations are of record. It is therefore
the Board's conclusion that the veteran has been provided
with every opportunity to submit evidence and argument in
support of his claims, and to respond to VA notices.
The Board is also aware of the considerations of the Court in
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006),
regarding the need for notification that a disability rating
and an effective date for the award of benefits will be
assigned if service connection or increased ratings are
awarded. However, in this case since the claim in question
is being denied, such matters are moot.
In light of the foregoing, the Board is satisfied that all
relevant facts have been adequately developed to the extent
possible and no further assistance to the veteran in
developing the facts pertinent to the issues on appeal is
required to comply with the duties to notify and assist. 38
U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159.
ORDER
Service connection for degenerative disc disease of
lumbosacrococcygeal area/coccydynia is denied.
REMAND
The veteran reports that he suffers from depression, which he
claims is related to his service-connected tinnitus. Private
medical opinions dated in June 2005, July 2006 and November
2006 confirm the veteran's treatment for depression, and
suggest a connection between his depression and his tinnitus.
However, in September 2005 the veteran underwent a VA
examination, which returned an Axis I diagnosis of dysthymic
disorder, and an Axis III diagnosis of tinnitus with a GAF
(global assessment of functioning) score of 60. The examiner
concluded that there was no evidence that the veteran's
depression was caused by or result of his service-connected
tinnitus.
VA regulations provide that a disability which is proximately
due to or the result of a service-connected disease or injury
shall be service connected. 38 C.F.R. § 3.310(a). Although
the VA examiner opined with respect to the etiology of the
veteran's depression, he did not sufficiently address the
question of whether the veteran has additional disability
resulting from aggravation of any non-service-connected
depression by his service-connected tinnitus. See also Allen
v. Brown, 7 Vet. App. 439, 448 (1995) (holding that 38 C.F.R.
§ 3.310(a) authorizes a grant of service connection not only
for disability caused by a service-connected disability, but
for the extent of additional disability resulting from
aggravation of a non-service-connected disability by a
service-connected disability). Accordingly, a definitive
medical opinion regarding the etiology of the veteran's
claimed depressive disorder and/or whether there has been a
measurable permanent increase of his non-service-connected
depressive disorder, caused by the service-connected
tinnitus, is needed.
The Board further notes that 38 C.F.R. § 3.310 has been
amended recently. The intended effect of this amendment is
to conform VA regulations to the Allen decision, supra. 71
Fed. Reg. 52,744 (Sept. 7, 2006) (codified at 38 C.F.R.
§ 3.310(b) (2007)). An assessment of the claim with
consideration of the regulatory amendment with regard to
these matters is needed.
Accordingly, the case is REMANDED for the following action:
1. Ask the veteran to provide any
medical records, not already in the
claims file, pertaining to treatment or
evaluation of his depressive disorder or
to provide the identifying information
and any necessary authorization to enable
the AMC/RO to obtain such evidence on his
behalf. Document any attempts to obtain
such records. If the AMC/RO is unable to
obtain any pertinent evidence identified
by the veteran, so inform him and request
that he obtain and submit it.
2. Then, afford the veteran an
appropriate VA examination. In
conjunction with the examination, the
claims folder must be made available to
the physician for review of the case. A
notation to the effect that this record
review took place should be included in
the report. The physician should elicit
from the veteran a detailed history
regarding the onset and progression of
relevant symptoms. All indicated tests
and studies should be performed, and the
physician should review the results of
any testing prior to completing the
report.
a. In the examination report, the
examiner should discuss the nature and
extent of the veteran's depressive
disorder. The examiner should then
address whether it is at least as
likely as not that the depressive
disorder is caused by or aggravated by
the service-connected tinnitus.
b. If such aggravation is found, the
examiner should provide an estimate of
the degree of disability over and
above the degree of disability that
would exist without the aggravation
caused by the veteran's tinnitus. For
example, is the degree of increased
symptomatology 10 percent, 20 percent,
etc., above the baseline
symptomatology after the effects of
the service-connected tinnitus are
first considered? The increment
should be identified and defined in
terms of actual reported findings on
examination.
c. Note: The term "at least as
likely as not" does not mean merely
within the realm of medical
possibility, but rather that the
weight of medical evidence both for
and against a conclusion is so evenly
divided that it is as medically sound
to find in favor of causation as it is
to find against it.
d. Note: The term "aggravated" in
the above context refers to a
permanent worsening of the underlying
condition, as contrasted to temporary
or intermittent flare-ups of
symptomatology which resolve with
return to the baseline level of
disability.
4. After completing the requested
action, and any
additional notification and/or
development deemed warranted,
readjudicate the claim by evaluating all
evidence obtained after the last
statement or supplemental statement of
the case (SSOC) was issued. If the
benefit sought on appeal remains denied,
furnish the veteran an appropriate SSOC
containing notice of all relevant actions
taken on the claim, to include a summary
of the evidence and applicable law and
regulations considered pertinent to the
issue currently on appeal, including VCAA
and any other legal precedent.
The veteran has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007).
______________________________________________
C. CRAWFORD
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs